Category Archives: Wash Post

San Antonio can’t wait for Trump et al.

San Antonio doesn’t have time to wait for Washington to pass an immigration plan

By Robert Rivard, May 16th 2019

Pastor Gavin Rogers, second from left, prays with an asylum seeker from Central America  at Travis Park Church, which is serving as a makeshift shelter, in downtown San Antonio on April 2. (Eric Gay/AP)
Pastor Gavin Rogers, second from left, prays with an asylum seeker from Central America at Travis Park Church, in downtown San Antonio on April 2. (Eric Gay/AP)

There is no time for such standoffs in San Antonio, where asylum seekers released by federal authorities along the border arrive in daily waves at the downtown Greyhound station.

The influx poses a significant challenge. I spent a recent night with migrants as they were welcomed at the bus station and taken to an adjacent migrant resource center and then a nearby church shelter for an overnight stay. San Antonio is a strategic way station, the point on Interstate 35 where asylum seekers see a long journey turn from terror and uncertainty to a first glimpse of a better life. It’s a second, invisible border crossing, evident in the relief on the faces of parents and children alike.

San Antonio has never declared itself a sanctuary city, but it is a city that has always offered it: to Mexicans fleeing revolution 100 years ago; to New Orleans residents displaced by Hurricane Katrina in 2005; and now, to fleeing Central Americans. A city with a majority-Mexican American population has a culture and history rooted in migration. The harshness of our national politics cannot change that.

Some days, 100 to 125 migrants arrive from the border. This week, the number flared to 200 or more daily. At times, it has been higher. “The migrants arrive only with the clothes they are wearing and what they can carry, and what they can carry in most cases is their young children,” said Colleen Bridger, the city’s senior public-health official who oversees San Antonio’s humanitarian, medical and shelter response. “We get no help or funding from Washington even though we are, in effect, acting as an extension of the federal government by processing and providing vital services to these asylum seekers.”

Bilingual relief workers escort new arrivals from the station to a makeshift migrant resource center inside a city parking garage where the San Antonio Food Bank serves a hot meal. Volunteer physicians and nurses deliver medical attention. Fresh clothing and footwear from Goodwill replaces tattered garments worn on the trek north. Every adult receives a new backpack with a Red Cross blanket, a bag of 20 snacks, soap and toiletries, crayons and a coloring book, a small stuffed animal, a used English-Spanish paperback dictionary, and a reusable water bottle. Sanitary products, over-the-counter medicines and diapers are distributed as needed.

Catholic Charities, which operates its own shelters around the city, helps fund the purchase of bus tickets that will take the migrants to other destinations after spending the night at the nearby Travis Park Church, a Methodist congregation with a history of serving the homeless and welcoming the LGBTQ community.

The aging church hall is a warren of rooms crammed with cots, a haven. Most asylum seekers leave the next morning on buses for their final destinations and waiting family or church sponsors. Immigration court hearings are likely 16 months or more into the future.

Migrants shared with me their harrowing stories of escape — deja vu for a reporter who covered Central America’s civil wars in the 1980s. The lawlessness that has reverberated down over the decades provides the setting that so many impoverished and threatened people seek to escape.

Heidi Serrano, 20, a third-year university student, arrived here 70 days after fleeing her home outside San Pedro Sula, Honduras. A local policeman showed up at her door one night and demanded weekly protection payment of 1,500 lempiras, about $60. “Someone I know … gave the policeman my cellphone number, and he began to track me,” Serrano said. “ He finally told me he would kill me if I didn’t have the money for him by the next day. I fled at dawn.”

Jeremy Herrera Mendoza, a slightly built 12-year-old from Guatemala City, was leaving school when members of La Mara Salvatrucha, or MS-13, approached. “I could either join their gang or they would kill my mother and younger brother,” Jeremy said.

The vicious street gang controls many of the poor urban neighborhoods in El Salvador, Guatemala and Honduras. Jeremy skipped school for one week to avoid gang members but then returned when his mother, Karen Mendoza Centeno, learned of his truancy. Gang leaders found him again and gave him one day to join or lose his own life.

Jeremy broke down crying as he told his mother the truth. Karen, 33, Jeremy and 9-year-old Abrahám boarded the first bus the next morning to Mexico, abandoning their home and belongings. Mendoza paid $2,500 to a coyote to smuggle them across the Rio Grande on tire tubes. They were then detained by the U.S. Border Patrol.

City official Bridger said San Antonio’s efforts to deliver services to the arriving migrants are straining local budgets, but the city does not intend to stop, regardless of how long the crisis continues.

No end is in sight: Last week a federal official told me 14,000 asylum seekers were awaiting processing that day in detentions centers, tent camps and other makeshift facilities along the border. The next day, that count grew to 18,000.

“At first we said, ‘Let’s gear up for a two-week response,’ ” Bridger said, “We now realize it’s just nonstop, it’s the new normal.”

Robert Rivard is the editor and publisher of the nonprofit Rivard Report in San Antonio.

Adam Schiff: An open letter to my Republican colleagues

Adam B. Schiff, a Democrat, representing California’s 28th Congressional District and chairing the Intelligence Committee of the House wrote on February 6 the following letter to his Republican colleagues.

House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) speaks on Capitol Hill on Feb. 6.

This is a moment of great peril for our democracy. Our country is deeply divided. Our national discourse has become coarse, indeed, poisonous. Disunity and dysfunction have paralyzed Congress.

And while our attention is focused inward, the world spins on, new authoritarian regimes are born, old rivals spread their pernicious ideologies, and the space for freedom-loving peoples begins to contract violently. At last week’s Munich Security Conference, the prevailing sentiment among our closest allies is that the United States can no longer be counted on to champion liberal democracy or defend the world order we built.

For the past two years, we have examined Russia’s interference in the 2016 election and its attempts to influence the 2018 midterms. Moscow’s effort to undermine our democracy was spectacularly successful in inflaming racial, ethnic and other divides in our society and turning American against American.

But the attack on our democracy had its limits. Russian President Vladimir Putin could not lead us to distrust our own intelligence agencies or the FBI. He could not cause us to view our own free press as an enemy of the people. He could not undermine the independence of the Justice Department or denigrate judges. Only we could do that to ourselves. Although many forces have contributed to the decline in public confidence in our institutions, one force stands out as an accelerant, like gas on a fire. And try as some of us might to avoid invoking the arsonist’s name, we must say it.

I speak, of course, of our president, Donald Trump.

The president has just declared a national emergency to subvert the will of Congress and appropriate billions of dollars for a border wall that Congress has explicitly refused to fund. Whether you support the border wall or oppose it, you should be deeply troubled by the president’s intent to obtain it through a plainly unconstitutional abuse of power.

Obstruction of justice is hard to prove, even if Trump makes it look easy. How to prove obstruction of justice: Did the suspect have corrupt intent, and would the actions, if successful, be likely to obstruct the proceeding? President Tariff Man may be learning all the wrong lessons from his trade wars

To my Republican colleagues, hear this: When the president attacked the independence of the Justice Department by intervening in a case in which he is implicated, you did not speak out. When he attacked the press as the enemy of the people, you again were silent. When he targeted the judiciary, labeling judges and decisions he didn’t like as illegitimate, we heard not a word. And now he comes for Congress, the first branch of government, seeking to strip it of its greatest power, that of the purse.

Many of you have acknowledged your deep misgivings about the president in quiet conversations over the past two years. You have bemoaned his lack of decency, character and integrity. You have deplored his fundamental inability to tell the truth. But for reasons that are all too easy to comprehend, you have chosen to keep your misgivings and your rising alarm private.

That must end. The time for silent disagreement is over. You must speak out.

This will require courage. The president is popular among your base, which revels in his vindictive and personal attacks on members of his own party, even giants such as the late senator John McCain. Speaking up risks a primary challenge or accusations of disloyalty. But such acts of independence are the most profound demonstrations of loyalty to country.

Special counsel Robert S. Mueller III may soon conclude his investigation and report. Depending on what is in that report and what we find in our own investigations, our nation may face an even greater challenge. While I am alarmed at what we have already seen and found of the president’s conduct and that of his campaign, I continue to reserve judgment about what consequences should flow from our eventual findings. I ask you to do the same.

Congress did its job on the border deal. It needs to do it again by amending the emergency act.

If we cannot rise to the defense of our democracy now, in the face of a plainly unconstitutional aggrandizement of presidential power, what hope can we have that we will do so with the far greater decisions that could be yet to come?

Although these times pose unprecedented challenges, we have been through worse. The divisions during the Vietnam War and the civil rights movement were just as grave and far more deadly. The Depression and World War II were far more consequential. And nothing can compare to the searing experience of the Civil War.

If Abraham Lincoln, the father of the Republican Party, could be hopeful that our bonds of affection would be strained but not broken by a war that pitted brother against brother, surely America can come together once more. But as long as we must endure the present trial, history compels us to speak, and act, our conscience, Republicans and Democrats alike.

Lindsey Graham, a strange fish of a man, or a devil?

I would have to admit that I’ve never known an evil person up close. Nor have I ever known evil itself, other than in written history and literature, probably more in history. Today while reading a notification from Live Science, I read: “Was the infamously cruel Nero really as terrible an emperor as Roman historians have suggested?”

And I would ask the question, was Nero an evil man? Do evil acts, make the perpetrator evil? Nero (A.D. 37 to 68) has long been considered a power-mad  despot whose leadership was defined by terrible acts of violence, such as poisoning a teenage rival, arranging his mother’s assassination, setting a fire that destroyed much of Rome, executing Christians and such. Does this make him evil?

And while thinking about this I asked myself, is President Trump, having shown himself capable of “evil” words and actions, does that make him evil? And the people about the president, those who kowtow to him, evidently for their own personal advantage, in particular Mike Pence, Mitch McConnell and the Republican Senate leaders, those and others of his sycophantic followers (the largest number being evangelicals making up what is called his “base,”) —those who look on their president, know what’s happening, know that with Trump  the rule of law is no longer paramount, no longer protected, while their president with their help, or at least with their non interference, is  shredding our democracy. By not opposing the irresponsible words and actions, the lies of their president, are these men evil?

Now I find myself even with an “evil” man  in the Oval Office, along with his just as “evil” followers, holding the view that there is no such thing as evil, no such thing in Washington like the devil tempting Faust, the devil tempting Jesus Christ, or Iago betraying and undoing his friend, Othello, nor is there even the devil of our stories and myths, those who dress themselves in devil’s clothes, nor even is there a devil-Nero himself.

If there is evil it has to be in all of us, not in some imagined figure we call the devil. The evil today is, of course, to be found in those who know things are bad but take no action to make things better, and thereby allow things to get worse. In this sense we might even call the Senate Republicans evil. By taking no action they are cutting off the good that could have surrounded them and us through their actions.

To understand what’s happening with Donald Trump one has to give up one’s own beliefs, in particular revise one’s previous conclusion that among the world’s peoples we the Americans were the enlightened ones.  No longer. Trump and his minions, his Evangelical base, have led us away from an adult rule of law, from the voice of reason, in short from responsible behavior.

Trump and company have removed themselves, and a good part of the country along with them, from the two strongest civilizing currents of our recent history —17th. century Science for one (Trump’s science guy doesn’t believe in global warming, in fact, doesn’t believe in science) and two, the 18th century Enlightenment.

Trump himself will have no truck with reason and he has right there with him his millions of followers also having no truck with reason, these including the crazies on the far right, Rush Limbaugh, Alex Jones, and Ann Coulter, and the crazies settled in at Fox Nation, Laura Ingraham, Sean Hannity, Lou Dobbs and Tucker Carlson. Trump and friends are opposing the best of what we have been as a country up until now. Extraordinary isn’t it, what he has done and that we have let him do it!

Trump by coming to Washington would, as he tells his base at the rallies, drain the swamp and build the wall. He has done neither although he still talks with his base at the rallies about doing both, fearing the loss of his base in 2020 if he doesn’t. But he has probably, if anything, only deepened the swamp by his constant assault on such as goodness, decency, fairness, justice, all those qualities that still could but have not yet, made us a truly exceptional people and nation.

Trump has taken us back to when the country was at its worst, to times when the people were truly divided, to times when E pluribus unum was not accepted, let alone realized. Now it’s MAGA, Trump’s personal mantra and fantasy, which means only that Trump is not familiar with, let alone understood, the country’s past history. In the years to come, years without Trump, MAGA will be treated as a hat and a joke, both of which it is.

How has Trump done  it? Well by his own colossal ignorance of history, by the thousands of lies in his almost hourly if not daily tweets, by the untruths during rare interviews and press conferences, by his choice of corrupt and unqualified individuals for his cabinet, in short, by a succession, through the first two years of his presidency, of myriad thoughtless and irresponsible actions.

He has done it by allowing to come out into the open and prosper the very worse traits of the people chosen to serve him, in particular such as Lindsey Graham, Mitch McConnell and other Republican Senators and Cabinet members. These people, mostly for some reason that escapes me (it can’t be just to hold onto their Senate seats) have become kowtowing, servile followers of their Emperor-President Donald Trump.
Continue reading Lindsey Graham, a strange fish of a man, or a devil?

Donkey Dead? Dead Donkey!

Will the Democrats Wake Up Before 2020?

They have no unifying leader and no clear message — yet. A definitive inquiry into the state of the party.

Photo illustration by Craig Cutler for The Washington Post
Story by Dan Balz
OCTOBER 2, 2018
The Iowa State Fair is an obligatory stop on the road to the White House, a cultural and culinary festival of heartland sensibilities, varied livestock and all manner of unhealthy food. The stands that populate the fairgrounds offer such treats as deep-fried mac and cheese, deep-fried pickles and ice cream nachos, along with the traditional favorites of pork-on-a-stick and foot-long corn dogs. In the summer of 2015, Donald Trump descended on the fair from his helicopter and was mobbed by press and public. On a recent muggy August morning, the arrival of Steve Bullock is far less dramatic.Bullock, 52, the second-term governor of Montana, is dressed in blue jeans, a blue button-down shirt and boots. He ambles down the main street of the fairgrounds virtually undetected. Only a few heads turn as he stops to talk with his friend Tom Miller, Iowa’s long-serving attorney general. Bullock’s political calling card these days is that he is a Democrat who won reelection by four points on the day that Trump was winning his state by 20 points. That won’t get you elected president, but it’s enough to start a conversation. Which is why Bullock is here in Des Moines in the summer of 2018: to start a conversation.

Next summer, the Iowa State Fair will be overrun by presidential candidates. This year, the pickings are slimmer — dark horses and lesser-knowns who might or might not eventually compete for the 2020 nomination. Among the Democrats who have decided to skip the fair are the big three: Joe Biden, Bernie Sanders and Elizabeth Warren. Among those who have decided to show up are Rep. John Delaney of Maryland, who has already visited all of Iowa’s 99 counties; Julián Castro, the former mayor of San Antonio and former HUD secretary; Tom Steyer, the billionaire Californian on a mission to force impeachment proceedings against the president; and Michael Avenatti, the combative lawyer for adult-film actress Stormy Daniels. As a sign of the times, the swaggering Avenatti, who has never run for office, creates the biggest waves in Iowa with his message that Democrats will need a real fighter — hint! — to topple the president.

Each year, the Des Moines Register sponsors what it calls the Political Soapbox for state and national politicians. The venue consists of a small stage along the fairgrounds’ main drag, a sound system, a few bales of hay and folding chairs for spectators. Politicians take the stage for a few minutes, deliver a speech, answer questions and hope the buzz lasts long enough for them to make their way to see the famous butter cow. It does not always go well: In 2011, Mitt Romney, in a testy exchange with a fairgoer, uttered the famous line that “corporations are people, my friend,” which didn’t do much to create a regular-guy image. In 2015, Trump smartly gave helicopter rides to kids.

As Bullock takes the stage, he finds himself in competition with a children’s Big Wheel race nearby, which is another reason the Soapbox can be a humbling venue. Bullock makes a joke about the tiny three-wheelers screeching along the pavement, offers a few obligatory comments about his connections to Iowa — his mother happens to have been born in the state — and then begins to road-test a message. Trust in government has disappeared, he says. He blames it on lost faith in all institutions and the corrupting influence of money, particularly big money whose origins are hard to trace. He tells the audience, “If we want to address all of the other big issues in our electoral system, in our political system, if we really want to address income inequality, if we want to address health care, if we want to address rights, you’re not going to be able to do it until you’ve also addressed the way that money is corrupting our system.”

He talks about what he’s done in Montana, working with a Republican legislature. “If we can do this in Montana,” he says, “it underscores to me that, look, this isn’t a Democrat or Republican issue; this is an issue about the fundamental trust and faith in our government.” His short speech completed, he takes a few questions. The last person asks whether he plans to run for president. “The question is when will I decide if I’m going to do anything after I serve as governor,” he says playfully. Then more seriously he adds: “Look, I do think that I do have a story of how I’ve been able to bring people together, and I think that’s in part what our country desperately needs. … So right now, what I’m doing is listening, and that’s honestly as far as it goes.” Within 10 days, he will be in New Hampshire.

FROM LEFT: Steve Bullock: The second-term governor of Montana says trust in government has disappeared. Michael Avenatti: The lawyer for adult-film actress Stormy Daniels has never run for office. Julián Castro: The former HUD secretary says he thinks people are looking for someone who is inclusive. (Photos from left: Charlie Neibergall/Associated Press, Ethan Miller/Getty Images, Charlie Neibergall/Associated Press)

Continue reading Donkey Dead? Dead Donkey!

“Matthew Whitaker is a crackpot.” Ruth Marcus in the Washington Post

I’ve just read that President Donald Trump has appointed Matthew Whitaker as acting Attorney General after forcing AG Jeff Sessions out. Whitaker, who served as Sessions’ chief of staff, will now oversee Robert Mueller’s investigation. Mark Sumner, in the Daily Kos of November 9, writes that Whitaker “isn’t just a nut, he’s a dangerous nut.” Are Marcus (“crackpot”)  and Sumner (“nut”) right about our new Attorney General? Given the President’s previous disastrous Cabinet appointments he probably is as described by the journalists, and consequently it’s not looking good for the rest of us.

 
Here’s the piece from the Daily Kos:

When Jefferson Sessions stepped down, the next in line at the Department of Justice should have been Deputy Attorney General Rod Rosenstein. But putting Rosenstein in charge would have meant having someone who demonstrably had followed the rule of law instead of the edict of Trump, so he was bypassed in favor of Matthew Whitaker, a man whose qualifications literally consist of his demonstrated willingness to join Trump in the critical work of turning the American justice system to rubble.

Whitaker was so not considered the obvious replacement to Sessions, that there hadn’t been a lot of vetting of his background before his name appeared on Sessions’s “at your request” resignation. And now that people are looking at the man who is sitting in the AG office in violation of the Constitution, the ridiculousness of his appointment seems at least equal to that of Andrew Wheeler at EPA, or Rick Perry at Energy, or Ryan Zinke at Interior, or Scott Pruitt at EPA, or … name a Trump nominee.

But Whitaker is in a position, at a point in time, to be a special kind of crazy dangerous. As Whitaker explained to Caffeinated Thoughts, he believes the whole concept of judicial review has been wrong for the last 200+ years, right back to “the idea of Marbury v. Madison.”

Then there’s Whitaker’s role in setting up a company that was a scam from its inception. A role that Whitaker embraced by sending letters threatening legal action to anyone who complained of being taken for $2k, or $15k, or $70k while getting absolutely nothing in return. That company bilked some customers of their life savings—and Whitaker didn’t just profit from that theft, he made it possible. The Washington Post provides some details on the company where the new attorney general served as both board member and bullying lawyer….

How inferior does the current attorney general believe the courts to be? So inferior that following the law is optional. As part of the settlement after his fake company was called out by the FTC, Whitaker was ordered to repay the money he had been paid for serving on the board. But, as the Wall Street Journal reports, Whitaker did not respond to a demand letter. He not only kept his pay for working for the patent scam company, he also kept a $2,500 donation from the company to one of his failed campaigns.

The acting attorney general of the United States, the man running the Justice Department, is a man who believes the whole judicial branch is “the inferior branch” and who refused to pay back money he collected from a scam, even when ordered by the court. The nation’s chief law enforcement officer—does not believe in the law.


As Ruth Marcus put it in the Friday Washington Post, “Matthew Whitaker is a crackpot.”
Which is completely, and obviously true. But she’s left out a word in that description. Matthew Whitaker is a dangerous crackpot. He’s in a position, at a time when he can deeply impact not just the investigation into Donald Trump’s conspiracy with Russian oligarchs, but the structure of the Justice Department, the nature and quality of the FBI, and the possibility of dealing with any matter fairly, under the rule of the “inferior” law. With a lame duck Republican Congress that is pointedly remaining silent about Whitaker’s unconstitutional appointment, the Justice Department is in the cross-hairs of a crackpot.

Is anyone listening?

mara-cheetah

Today, thousands of species of wildlife sit on the verge of extinction because of our actions. We have destroyed their habitats, fundamentally altered the climate by pumping carbon into the atmosphere and hunted down once-massive populations to groups so small that we can count the surviving animals on our fingers. So great is this anthropomorphic threat that scientists argue that we’re currently in one of the worst mass extinction events in the history of the world — up there with a cataclysmic volcanic eruptions and collisions with asteroids.   (Robert Gebelhoff, Wash. Post, 10/17/18)

biodiversity-2_orig

Fred Barbash on the Rule of Law

I’ve written any number of times of the importance of the Rule of Law, along with the importance of the Enlightenment, or what is now referred to as Classical Liberalism:

“Classical liberalism” is the term used to designate the ideology advocating private property, an unhampered market economy, the rule of law guaranteeing the rights of the individual, constitutional guarantees of freedom of religion and of the press, and international peace based on free trade.

Well here are good examples of the Rule of Law in the America of Donald Trump, when the Judges are ruling, following the Law against the President, and thank goodness for that. —

The Trump administration’s crazy losing streak in the courts: No, Jeff Sessions, it’s not about the judges.


U.S. Attorney General Jeff Sessions attends a Trump Administration cabinet meeting in the Cabinet Room at the White House on Wednesday. (Photo by Chip Somodevilla/Getty Images)
October 19
Litigation is like everything else in life, including sports and perhaps dating. You win some and you lose some. You can blame the refs, or the date, or the judge if things go bad a few times. If losing lawsuits becomes a pattern, especially when you’re the government, which is supposed to win, you have to start wondering: Is it you?

The Trump administration is on a staggering litigation losing streak, with restraining orders littering the legal battlefield from coast to coast. To be sure, some of these fights are not over. Most of the rulings have found plausible cases of constitutional or statutory violations, with trials and possible appeals yet to come. But getting that far against the government used to be a big hurdle. Now, not so much.

And in many instances, it’s not just one judge ruling on one issue. It’s a pile-on, in which multiple judges arrive at the same conclusion about the same issue.

Among those issues, for example, are the administration’s “sanctuary cities” crackdown, blocked by at least four courts; its attempt to rescind DACA, also held up by at least four courts; the proposed ban on transgender people in the military, blocked by no fewer than four judges, with two of the rulings upheld by appeals courts.

And not to be forgotten, the Trump administration’s travel ban, enjoined repeatedly by multiple rulings until the Supreme Court finally allowed its third iteration to go forward.

Meanwhile, Attorney General Jeff Sessions is blaming the judges.

In a speech to the conservative Heritage Foundation on Monday he bemoaned the losses, but attributed them to rampant “judicial activism,” and  judges who have forgotten about “the rule of law” and the “guardrails” that limit them.

Their activism, he said, “is a threat to our freedom and the democratic process.”

Some legal experts do believe that the judiciary is feeling bolder than it once did, perhaps because of what they see as presidential overreach, perhaps because of Trump’s open hostility to the federal courts, reflected in his comment in 2017 about the “so called” judge who first ruled against his travel ban and his reference to U.S. District Judge Gonzalo Curiel’s “Mexican heritage” when he was presiding over a case against Trump University. “Context matters,” as former federal judge and now Harvard Law School’s Nancy Gertner wrote in an article called “Judging in a Time of Trump.” And some of the language in the rulings does indeed show a fired-up sense of mission. “It falls to us, the judiciary…to act as a check on such usurpation of power,” wrote Ronald Reagan appointee Judge Ilana Rovner in April as the Court of Appeals for the 7th Circuit upheld an injunction against Sessions’s sanctuary cities policy on the grounds that it assumed authority delegated to Congress alone.

But there wasn’t a hint in Sessions’s speech of any fault with the administration, the way it does business and the impulsiveness of the president. No “mistakes were made” crossed his lips.

But reading the many rulings, from Republican and Democratic appointees alike, the decoupling of the Trump administration from the requirements of the law is clear.

When the government makes a decision, that law demands, at the very least, a legitimate explanation and some facts, studies and statutes to support it. Judges call it “considered reason” and “deliberation.”

It’s not complicated. If an agency gets its act together before making decisions, bringing in lawyers and experts to bulletproof it from lawsuits, it may still get sued. But it will stand a much better chance of prevailing. In most cases, the courts defer to solid judgments by the government.

But “considered reason,” “deliberation” and facts have not been hallmarks of the Trump administration, in the view of the judges in these cases.

Perhaps the most glaring example was the abrupt decision by President Trump to announce a ban on transgender people from serving in the military, reversing a carefully studied decision to the contrary by the Obama administration.

The news of the reversal came in a series of tweets by Trump on July 26, 2017, saying he was acting after consultation with top brass and “military experts,” followed by a presidential memorandum a full month later directing the Secretaries of Defense and Homeland Security t “return” to the military’s policy to discharge openly transgender service members and prohibit the admission of new ones.

Top military officials, who had indeed not been consulted, were taken by surprise.

What followed were lawsuits and courtroom scenes that have become all too familiar to the government lawyers into whose laps the cases fall after these decisions are made.

Wearing his good suit, and earnest, deferential courtroom demeanor, one such lawyer stood before U.S. District Judge Marsha Pechman in Seattle four months after the Trump tweets attempting to defend the action.

“Good afternoon, your honor, may it please the court. Brinton Lucas for the United States,” he began in the case of Karnoski v. Trump.

A good afternoon it would not be.

His opening gambit was to try to convince Pechman that there was no ban, just a memorandum and a study of a ban. Nobody had been thrown out of the military yet, so there was no case to consider. The lawyer’s argument was routine and perfectly normal in regular circumstances.

But the Trump administration is not normal.

Roughly four minutes into his argument, Pechman interrupted.

“You’re gonna need to back up,” she said. You’re going to need to “address the president’s words,” in this case a tweet, “when he said that ‘after consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.”

She added: “There’s nothing ambiguous about that statement….I mean, what am I supposed to do with the president’s tweet if that’s not something you can rely upon?” At one point she made reference to “bone spurs,” the ailment which reportedly kept Trump from being drafted.

Nor was the decision entitled to any deference, she wrote. “The prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation,” she added. She then issued a preliminary injunction against the ban, concluding that the plaintiffs were likely to prevail on the merits and show that the policy was an unconstitutional act of discrimination.

She was not the first judge to act. A court in the District had done the same three weeks before the hearing. Another in Maryland had done the same even as the hearing was underway. By September of this year, at least four district court judges agreed in separate cases. Pechman’s order had been upheld by a unanimous decision of a three-judge panel of the Court of Appeals for the 9th Circuit and the Court of Appeals for the District of Columbia had upheld the District ruling.

By a very rough count, a grand total of some 40 to 50 federal judges have weighted in against the Trump administration in cases. Could they all be off-the-rails judicial activists?

The problem is not the judges, said Anthony S. Winer, a professor at the Mitchell Hamline School of Law who wrote recently about some of these cases in the Hamline Law Review.

“It’s a commentary on the legal methods” of the Trump administration, he told The Washington Post. The administration “advances policy goals on the basis of ‘things to be frightened of, and things to be wary of’….It relies on the emotional reaction of its audience and the emotional identification of its audience.

But when you’re in a courtroom, what matters is facts on the record,” he said, and those facts “don’t support the government’s justifications for what it has done.”

As for the lawyers for the U.S. government, Winer said they “probably did the best they could in defending these executive orders.”

Consider the litigation over the sanctuary cities crackdown, a favorite of Sessions.

Acting under a Trump executive order, Sessions has determined that the government will withhold funds from jurisdictions that are in his view insufficiently cooperative in handing over information about illegal immigrants they encounter in law enforcement. Sessions was backed up by Thomas Homan, then the acting director of Immigration and Customs Enforcement, who went on Fox News in January and threatened to start “charging some of these politicians with crimes” for failing to cooperate with his agency. He was also supported by the president, who that same month accused California of protecting “horrible criminals” with it sanctuary policies, and said he was contemplating pulling ICE agents out of the state, saying California would then become a “crime nest.”

They then sent government lawyers into court when the state of California, the city of San Francisco and other jurisdictions sued. Like the lawyers in the transgender case, they argued that nothing was happening.

“Good afternoon, Your Honor. Chad Readler, on Behalf of the United States,” said one of the Justice Department’s top lawyers when he appeared in court in February to defend the administration.  

“Welcome back to San Francisco,” responded Judge William H. Orrick of the U.S. District Court.

Three minutes into Readler’s argument, however, Orrick interrupted.

What did Readler mean when he said there was no threat to these jurisdictions, he said. What about “the statements of the President last week threatening to take ICE enforcement out of the State, or the Acting ICE director’s threat to prosecute criminally public officials….?”

To which Readler replied that the comments weren’t relevant.

Orrick issued an order temporarily blocking the sanctuary cities policy and ultimately, on Oct. 5, an opinion declaring unconstitutional the law being used by the administration to block funds.

Nine judges have either issued or upheld opinions and/or temporary restraining orders against the administration’s sanctuary cities crackdown.

At least two, in California and the District of Columbia, have rejected its asylum and family separation policies.

Earlier this month, Judge Edward Chen in the Northern District of California blocked the decision to end temporary protected status for immigrants from selected countries. and six have ruled against the government in the census cases.

Some judges are openly astonished at what they’re seeing.

Again a refresher: when a typical federal agency makes a decision, particularly one abruptly reversing course, it owes an explanation. That’s the law. So when newly-installed Trump administration officials at a Department of Health and Human Services agency, suddenly under the sway of officials who championed abstinence as the best way to prevent teen pregnancy, suddenly cut off funding to 81 pregnancy prevention programs in July 2017, it was asking for lawsuits. The Office of Adolescent Health had provided no notice to the programs and no explanation.

Suits erupted across the country, aided by advocacy groups and local governments. Four government lawyers then found themselves in the courtroom of Judge Ketanji B. Jackson in the U.S. District Court for the District of Columbia on April 18 for a hearing.

“Good morning, Your Honor, Michael Gerardi on behalf of Health and Human Services,” said the lead trial attorney. But it would not be a good morning for Gerardi either.

Jackson pressed him.

“So is it your position,” the judge asked incredulously, that “the agency can suddenly decide, ‘We’re not giving you this money anymore ….Too bad. So sad. Regardless of whether there’s cause or anything else….?”

To which Gerardi, replied at some length, yes, that was the position.

That’s “kind of weird,” replied Jackson. “Right?”

She joined at least four judges in separate courts around the country in rulings against the agency under the Administrative Procedure Act.

The case, she wrote, was “quite easy. Under the most elementary precepts of administrative law, an agency has no choice but to provide a reasoned explanation for its actions….”

With the Trump administration now filling scores of federal judicial vacancies, it’s luck may improve. But if history is any guide, Sessions shouldn’t count on it.

 

UNTRUTH: Trump calls Puerto Rico response an incredible unsung success

President Trump on Sept. 11 praised his administration’s response to the damage to Puerto Rico from Hurricane Maria, where the death toll was nearly 3,000.

(by Josh Nawsey, The Washington Post, September 12, 2018)

An estimated 3,000 people died after the devastating Hurricane Maria ravaged Puerto Rico last year. Large swaths of the island were without power for months. FEMA was short thousands of workers and underestimated how much food and supplies were needed in the recovery, according to a federal government report.

But in the eyes of President Trump, the government’s response was a raging success — and one he touted this week as a monstrous hurricane pinwheeled toward the Carolinas.

“We got A Pluses for our recent hurricane work in Texas and Florida (and did an unappreciated great job in Puerto Rico, even though an inaccessible island with very poor electricity and a totally incompetent Mayor of San Juan),” he wrote Wednesday on Twitter.

It’s a frequent tactic of the president — elevate a widely perceived failure or mistake and defend it as a great triumph while attacking his critics. His detractors say it is shameless and sometimes comical gaslighting; supporters say he is just a master marketer who uses hyperbole and always shows strength.

“You just never give an inch or admit any mistake in public,” said Sam Nunberg, a former aide describing Trump’s mind-set.

Inside the administration, firing James B. Comey as FBI director in May 2017 is widely perceived as an original sin that spun a cascade of other problems for the White House — including the creation of a special counsel’s investigation that has tormented the president and includes an obstruction-of-justice inquiry. He was repeatedly counseled against the firing by top aides such as former chief of staff Reince Priebus, White House counsel Donald McGahn and former White House strategist Stephen K. Bannon, who have since faced hours of questioning over Trump’s actions as part of the special counsel Robert S. Mueller III’s probe.

Puerto Ricans agree: Trump’s response to Maria was a failure

In the town of Yabucoa, residents say their government let them down and their struggle continues one year on.

But rather than show any signs of regret, the president has instead championed Comey’s firing, both publicly and privately, as a smart decision.

“I did a great service to the people in firing him!” Trump tweeted this summer.

Trump faced withering criticism, even from supporters, for standing on a podium in Helsinki in July and cozying up to Russian President Vladimir Putin while seeming to question U.S. intelligence agencies’ findings that Moscow interfered in the 2016 election and entertaining the idea of letting Russian law enforcement officials question American citizens.

But to hear Trump tell it these days, it was one of his finest hours.

“One of my best meetings ever was with Vladimir Putin,” he said earlier this month, before attacking the “fakers,” or his short-term for the “fake news media.”

This week, he has repeatedly brought up Bob Woodward’s book “Fear” — continuously calling attention to a portrayal of his White House as incompetent and veering toward a breakdown. Trump says the book is a “scam” and that his White House is a “smooth running machine.”

Aides say that Trump’s tendency to focus on and defend his perceived failures is fueled by a mix of potent factors. He obsesses over negative news coverage sometimes long after the topic has changed. He often marvels that he can make the cable news chyrons change. And he is constantly selling himself — regardless of who is in front of him and no matter the topic.

Sometimes, he is trying to preempt criticism that he knows is likely to revive itself, like before this week’s hurricane. And he tells senior aides that his supporters will believe his version of events.

It leads to awkward encounters and surreal situations for those around him. His comments this week on the administration’s handling of the recovery effort in Puerto Rico following last year’s hurricane quickly morphed from a defense of how a difficult situation was handled to a declaration that it couldn’t have gone better.

It was “one of the best jobs that’s ever been done with respect to what this is all about,” Trump told reporters in the Oval Office on Tuesday.

It was a statement that drew immediate condemnations and questions about how Trump could characterize the recovery effort as such a success especially on the heels of a study that estimated there were nearly 3,000 excess deaths in Puerto Rico due to the hurricane.

“You know there are no A-pluses in disaster recovery. That letter doesn’t exist,” said Marc Ferzan, who led recovery in New Jersey after Superstorm Sandy and is now a consultant.

Trump also broods over perceived mistakes, even if he won’t admit they are missteps. He has repeatedly brought up to aides his decision to endorse Roy Moore in the Senate race in Alabama last year. Moore lost after The Washington Post reported on allegations that he pursued and sexually assaulted teenage girls when he was in his 30s.

“The president asks me all the time, ‘Why did Roy Moore lose?’” Mick Mulvaney, his budget director, recently said at a New York fundraiser.

He has also complained that aides publicly admitted mistakes earlier this year over their handling of allegations that former White House staff secretary Rob Porter was emotionally and physically abusive toward his two ex-wives. “You should have never apologized,” he told a group of communications aides, according to two people. “You don’t ever apologize.”

Trump observers and critics said that the president’s refusal to admit mistakes and to go a step further and declare them smart moves has long been part of how he operates.

“One of his great strengths is that he lives in his own reality distortion field — there is this narrative going on all the time in his head about how successful he is, how great he is — one of the things that allows him to plow ahead after he makes mistakes,” said Timothy O’Brien, a longtime Trump biographer.

 The Administrative State and the End of History

Francis Fukuyama just has to be wrong. Not about the end of history, for we are at history’s end (history being up until now the very imperfect record of how man has governed himself during some 50,000 or more years) but about the nature of the organizational structure of the last state.

The last state is/was not, of course, communist as Marx, Lenin, Mao and their followers would have it, nor was it the fascist state tried by Hitler and others, and still being tried by reactionaries today, but, and this a big but, neither was the last state liberal and democratic as described by Fukuyama.

The last state marking history’s end just has to be the administrative state. Not the fake autocratic democracies of present day Russia, Iran, Turkey, and Venezuela nor the real autocracies of China, Syria, Egypt and Cuba.

The administrative state is, or will be in most places, the last one standing because it is the only governing political structure that takes into account the huge differences there are among people. And that has to be the biggest discovery of the modern world, that people are different, and not because of the color of their skin. For much too long political leaders of all stripes have been devising governing structures that would attempt, unsuccessfully of course, to make people all the same, perhaps wrongly assuming they were. They’re not.

People are different. And our differences are now more than ever in view, if not in all instances thriving. And only the administrative state, among the world’s governing structures, tries to recognize and contain the differences among us while not just placing them within, but making then an integral part of, the constantly evolving, fluid and what seems to be the unwieldy and formless state structure encompassing them.

However, we’re not there yet. In fact it does still seem all too often  that we can’t yet govern ourselves, that our leaders, such as they are, are themselves most often at a loss what to do. So as I say it’s messy, life’s messy, but what we have come up with, the more and more global administrative state, is par for the course, probably the best we can do at present.

As crazy as this may seem, as crazy as it seems to me, there are those who would bring down the administrative state: —Steve Bannon, for example, but also the recent Supreme Court nominee, Neil Gorsuch, an originalist, or one who would always go back to our founding documents as if they were no less relevant today than at their origin (if then).

These people and others, mostly of conservative, nationalist, and nativist views, many among the close advisors of President Trump, while trying to correct what they may see as the failures of present day societies, only make things worse by favoring this group or that group, their groupings based on ethnic, racial, sexual or other superficial divisions, never on the fundamental and individual differences among us, these being the only ones that really count. The real failures of our society including economic inequalities, family breakdowns, true believers turning into fanatical Islamic terrorists, the country’s lacking a moral center, the frequent and ubiquitous manifestations  of untruth and unreason) remain pretty much untouched.

The differences between us now coming out mean that we have to constantly confront an endless stream of issues and problems, and it’s only the administrative state that seems to be up to the task of handling them.  Here are two examples of the typical situations that we face all the time.

The first follows from the sale of recreational marijuana being allowed in Massachusetts. In November of last year 1.8 million residents went to the ballot boxes to vote to legalize recreational marijuana. The result was that growing, buying, possessing, and using limited quantities of the drug became legal in Massachusetts. How will the sale and use of the drug be regulated and controlled?

The second situation follows from the fact of the sale and distribution of foods taking place in public on the streets of Bangkok, Thailand. The streets in the example, and in the pictures below are in Bangkok, but they might have been in lower Manhattan or New Orleans.

Both situations will mean, of course, that new regulations will be necessary, probably a lot of regulations (and who would want it otherwise?) on top of whatever codes and regulations already existed for this sort of thing. The bureaucratic state with all its red tape is here to stay. There are thousands, hundreds of thousands of situations like these just in our own country’s history.

By the way we may be “great” now. But history, if nothing else, makes it clear that at no time in the past were we great. (History of course being one of the subjects of which our President is almost without any knowledge, that is ignorant.)

World wide there are millions, hundreds of millions of situations springing up where new regulations  are needed and necessary. And when the people who are living together are all different, as is the case now and has always been, it makes it even more difficult and complicated to resolve the problems arising from such situations. But we have to do it, and we have to do it by means of the last state standing.


In Massachusetts State Treasurer Deborah B. Goldberg is the top recreational marijuana regulator, with unilateral power to hire and fire the officials who will oversee the new billion-dollar industry. But things will probably not remain that simple. The State Legislature wants some of the action, and appears likely to strip Goldberg of her authority, perhaps creating an independent marijuana oversight commission instead.

Also Representative Mark J. Cusack, House chairman of the committee overhauling the voter-passed pot law, floated the possibility that a “new regulatory structure, such as an independent commission,” might work better for Massachusetts than the current plan. It’s worth reading the article from the Boston Globe, Lawmakers may strip treasurer of pot authority, as a fine example of the rapid growth, in this case, of state agencies. No end in sight?

From the Globe article: “…Advocates expressed worry that taking authority away from Goldberg would push the opening of retail shops further into the future. The treasurer’s office is the appropriate place for the Cannabis Control Commission because both this treasurer, and past treasurers, have shown a very high level of regulatory ability with the Alcoholic Beverages Control Commission, which is the most analogous agency. Our fear is that moving the Cannabis Control Commission now, after considerable work has taken place in the treasurer’s office, will result in additional delays,,…”

The other article,

The World Capital of Street Food Is Banning Street Food,

is from the magazine Foreign Policy.

Bangkok’s bustling, roadside food stands are legendary. But with the Thai government’s new decree to shut down street food — in an attempt to improve safety and cleanliness — outrage is growing.

Below I’ve posted a few of the pictures from the streets of Bangkok. After looking at them imagine it your job to determine the amount and kinds of rules and regulations that would be necessary to be sure that people there in the streets were not at risk from the products they were buying. I’m sure you’ll agree that regulations (and a lot of them) will be necessary.

These two articles almost by themselves ought to make us, if we’re not already, believers in the Administrative State. For me it was like realizing where I had been living all my life, just as M. Jourdain in the Molière play realized he had been speaking prose all his life.

Link to Foreign Policy


Neil Gorsuch on the Administrative State

Just heard that Neil Gorsuch has been confirmed by the Senate to the ninth seat on the Supreme Court.

Will the new Justice undermine the administrative state, what I’ve called our “speaking mostly in prose?” And will he try to return us to the poetry of the past, to the Constitution, as he seeks to promote his own originalist position?

Scalia and Gorsuch

We are told that Gorsuch in respect to the Constitution is an originalist much like Antonin Scalia whom he greatly admired and whom he is replacing. The two men would do nothing that was not allowed by the historical moment, time, and spirit of the Constitution. In a more conservative court Scalia would not have permitted abortion, same sex marriage, probably not assisted suicide. Will Gorsuch be with him with similar positions?

Emily Bazelon and Eric Posner have written (see The Government Gorsuch Wants to Undo) that Gorsuch’s being on the court would be bad not only for the administrative state but even worse for the country.

“Judge Gorsuch,” they write, “embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”

Their words are a clear statement that the rules and regulations that we are obliged to live with, and while mostly complaining about, see them as more important than, say the much ballyhooed separation of powers, for our country’s well being. Think clean air and water, previous existing medical conditions, the safety of the work place, not to mention the rights of minorities whose presence was not even acknowledged in the Constitution or in the earlier history of the country.

In other words Gorsuch would strongly oppose the administrative state, placing himself “smack” in the company of Steve Bannon, who has called any number of times  for its “deconstruction.”

Trump of course didn’t understand what he was doing by choosing Gorsuch. And as for Gorsuch himself, one might ask if he, for all his otherwise brilliance and readiness to serve on the court, really understands the weakness of the originalist position, his own and the one he so much admired in his predecessor Antonin Scalia. In a world, our world, where change is everywhere and where evolutionary science is to be looked to for guidance, more so than tradition and yes more so than religion, stuck no less than tradition in the past, and needing desperately (think priests in the  Catholic church and terrorists in ISIS) to change.

As Judge Gorsuch himself put it in a speech last year (Summer, 2016) the Legacy of Justice Scalia, the administrative state “poses a grave threat to our values of personal liberty.” It would seem therefore that Gorsuch would go along with the House bills that would undo so many of the rules we have come to live with, rules that in most instances do not take away our personal freedoms but enable us to better enjoy them. Think environmental protection, rules of the road, the rules of our games, both road and games entirely dependent on rules and referees, as so much else in our lives. And all that has been a good thing.

Nan Aron, the president of the Alliance for Justice, agreeing with Bazelon and Posner, has written  (see, Adam Liptak,  in a Times article,1/2017, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style,) that Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than that of Antonin Scalia —

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”

Scalia

Judge Gorsuch’s writing does differ, perhaps, from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding. (See above, Adam Liptak.) This difference was what probably got Gorsuch through the confirmation process and the questioning by the Senators so easily.

Judge Gorsuch’s confirmation probably means that for the time being the court will return to a familiar dynamic, with Justice Anthony M. Kennedy, a moderate conservative, holding the decisive vote in many closely divided cases (again Adam Liptak). But most important Gorsuch’s confirmation will give added life to the originalist positions of the conservative Justices now on the Court, threatening what the more liberal and progressive courts have achieved up until now, especially if Trump goes on to choose still another originalist for a new SCOTUS vacancy.



Liberté, Égalité, et Fraternité